Consilient: the concurrence of multiple inductions drawn from different data sets.
Induction: the process of deriving general principles from particular facts or instances.
Concurrence: agreement.

Tuesday, August 31, 2010

The Horse says "Not so fast...."

234 years later, the same arguments. Only this time we have the internet where everyone's "take" on a subject can be presented. Yeah...that includes mine. I am a bit different (well of course you are!) then most, because I look for information to change my current way of thinking. That is, I want to go where the truth is, regardless of how I feel about it.

So as a public health guy, I am naturally biased towards actions that benefit the health and safety of my fellow citizens. That includes access to health care - which more than just helping my fellow American would also help me. So now you know that whatever I write will be biased towards that end. Well if that be the case it kind of defeats what I am trying to do with a blog I call "consilient inductions." So yeah, some bias will sneak in, but it is not intentional or designed to mislead.

Now one of the things I force myself to do is read and listen to those who have an opposing view to mine. I already know how I see it, I want to see how they see it and the reasoning used to support their view. So this site has a discussion on the "General Welfare" clause of the Constitution.

Article 1, Section 8 of our Constitution: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

Whooohboy, does this illicit a bunch of view points! And a whole ton of quotes from our "founding fathers" in order to support a particular way of interpreting the constitution. Now when you quote you should cite. And when you read a quote you should understand it's context (see my last post) - which means you should look it up.

Now there are two issues of contention in play when discussing Article 1, Section 8 of the Constitution:

Does the term "public welfare" give Congress the power to do anything other than those powers specifically enumerated?

What does "provide for the public welfare" mean?

Now this is a pretty large debate to tackle in one blog post, so I'm going to come back to it again. For today, dear reader, it will involve looking at question 1 and how those who oppose anything the Federal Government does support their argument of "too much" government involvement in our lives.

Question: When confronted by the indisputable facts, what excuse do those in Washington use to justify actions that factually exceed enumerated constitutional limits? Answer: They hide behind that ubiquitous General Welfare Clause. And what is the General Welfare Clause?

Now we’ve argued about the definition of this for over 200 years in the courts, in the congress and on the streets and you can reference almost any opinion you like because most will seek out the interpretation that justifies their action. Given the difference of opinion over the years, whose opinion really counts? Whose view is definitive? Speaking as a simple solider, I’d say it would be the folks that wrote the original document even more so than the subsequent courts that bastardized it.

What did the Founders really mean? After all, they’re the ones that can actually answer questions first hand concerning original meaning/intent and not be speculative or twisted politically by the passage of time wouldn’t you think?

OK, let’s see what they had to say and put this question to rest. Let’s ask James Madison, the Father of the Constitution, Thomas Jefferson and Alexander Hamilton. Could they possibly shed any light on this?

[edited]

Admittedly, Jefferson and Madison were not our only Founders. These two were strict constitutionalists who feared the potential strength of any government. So let’s look at another Founder’s opinion—Alexander Hamilton who historically saw it in a somewhat looser vain.

“This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.” – Alexander Hamilton, Federalist 83

Hamilton uncategorically states that all congressional powers are enumerated and that the very existence of these enumerations alone makes any belief that Congress has full and general legislative power to act as it desires nonsensical. If such broad congressional power had been the original intent, the constitutionally specified powers would have been worthless. In other words, why even enumerate any powers at all if the General Welfare clause could trump them?

“No legislative act … contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.” – Alexander Hamilton, Federalist 78

In short, Hamilton tells us that since the powers of Congress are enumerated and limit Congress to those powers, any assumed authority outside those specified that don’t have a direct relation to those explicit powers must be contrary to the Constitution and therefore — unconstitutional.

From the proverbial horses mouths to your own eyes — the all-encompassing General Welfare Clause is not as all encompassing as our current “leaders” would have us believe. In no way does that one phrase grant unlimited power to the Federal government rather it pertains only to those enumerated powers that can and ought to be applied universally and in general to the several states.

Now if you read what he quotes, he makes a pretty convincing argument that we have gotten way off course from what the writers of the constitution wanted. There is some truth to that, but that's the nature of having people govern themselves. Sometimes we are right on and other times we veer off course. Not everything one opposes means we have gotten away from the "original intent" of the constitution. Nor do quotes from these old timers always lend support to our way of thinking.

I have spent the last two days (and I stayed at a Holiday Inn Express) reading up on this subject. What I have come away with is this: If you are against something Congress does, it is either constitutional or it is not. It has nothing to do with how you interpret the meaning. Most people opposed always shout something along the lines of:

THIS NATION UNTIL 1965 WAS BASICALLY THE ONLY NATION IN THE HISTORY OF THE WORLD WHICH HELD ITS NATIONAL POWER TO AN ENUMERATION OF 18 POWERS TO TAX AND SPEND.

If the portion of the clause "to provide for the common defense" was indeed a standalone power, why would the founders then explicitly list a power "To raise and support armies"? It would be redundant. Does providing for the "common defense" exclude the raising and supporting of armies? Absolutely not. Therefore the only reasonable construction is that the power to raise and support armies is the explicit enumeration of the manner in which the general power to provide for the common defense is to be carried into effect.

What is missing from all of this is a clear understanding that the framers knew exactly what it had to say, which is why they wrote it and substantially got it approved and ratified. The idea that somehow we veered off course with FDR's "New Deal", Medicare, Social Security, or "Obamacare" is what you may think but has nothing to do with it being constitutional. You may think the powers are enumerated to 18 and that that the Power "provide for the common Defence and general Welfare of the United States" can't be a standalone power because it makes the other 18 redundant, but it was decided a long..long..long time ago that this view is incorrect.

To put it bluntly, the Jefferson view of what the Constitution explicitly allows Congress to do - lost. It did not loose because of Obama, or Johnson, or FDR, it was decided way-way-way back when the framers were still very much alive. We the people - which includes me and you - through the governmental setup we adhere to (President, Congress, Supreme Court) - and a Constitution that gives this government its guidelines, has said that the Hamilton point of view is the correct one.

Now Capt. Karl quotes Hamilton's views on the subject, so lets look at one of them in whole. This from 5 Dec. 1791, Papers 10:302--4:

A Question has been made concerning the Constitutional right of the Government of the United States to apply this species of encouragement, but there is certainly no good foundation for such a question. The National Legislature has express authority "To lay and Collect taxes, duties, imposts and excises, to pay the debts and provide for the Common defence and general welfare" with no other qualifications than that "all duties, imposts and excises, shall be uniform throughout the United states, that no capitation or other direct tax shall be laid unless in proportion to numbers ascertained by a census or enumeration taken on the principles prescribed in the Constitution, and that "no tax or duty shall be laid on articles exported from any state." These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and "general Welfare." The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. [edited]

The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this--That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.

So Capt Karl is half right:

From the proverbial horses mouths to your own eyes — the all-encompassing General Welfare Clause is not as all encompassing as our current “leaders” would have us believe. In no way does that one phrase grant unlimited power to the Federal government rather it pertains only to those enumerated powers that can and ought to be applied universally and in general to the several states.